The Honorable William T. Lawrence of the United States 1

District Court for the Southern District of Indiana, sitting

by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3088

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID M. LARSEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 CR 29—Rudolph T. Randa, Judge.

ARGUED MAY 5, 2009—DECIDED AUGUST 4, 2010

Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE,

District Judge.

1

SYKES, Circuit Judge. David Larsen brutally beat Teri

Jendusa-Nicolai, his ex-wife, at his home in Wisconsin.

He then bound her with duct tape, stuffed her in a
2 No. 08-3088

garbage can filled with snow, put the can in the back of

his truck, and drove to a self-storage facility in Illinois.

He left her there—still bound and in the snow-filled

garbage can—in an unheated rented storage locker. She

was discovered the next day, about an hour from death.

Larsen was charged with state and federal crimes;

the state charges were resolved first. See State of Wisconsin v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736

N.W.2d 211. Thereafter in federal court, Larsen waived

his right to a jury and after a trial to the court was convicted of two counts: kidnapping in violation of 18 U.S.C.

§ 1201(a)(1), and interstate domestic violence in violation of 18 U.S.C. § 2261(a)(2) and (b)(2) (the Interstate

Domestic Violence Act). The district judge sentenced

him to life in prison, which exceeded the recommended

sentencing-guidelines range.

Larsen challenges both his convictions and his sentence. His first claim on appeal is a Commerce Clause

challenge to the Interstate Domestic Violence Act; he

contends that the Act unconstitutionally federalizes

purely local violent crime with an insufficient nexus to

interstate commerce. He next argues that his convictions for kidnapping and interstate domestic violence

are multiplicitous in violation of the Double Jeopardy

Clause. He also maintains that a warrantless search of

his home on the afternoon of the victim’s disappearance

was unjustified under the emergency doctrine and therefore unreasonable in violation of the Fourth Amendment. Finally, he challenges his life sentence to the

extent that the judge’s decision to impose it was based
No. 08-3088 3

on Jendusa-Nicolai’s having suffered a miscarriage three

days after the attack.

We reject these arguments and affirm. The Interstate

Domestic Violence Act punishes those who use “force,

coercion, duress, or fraud” to cause a domestic partner

to travel in interstate commerce and who commit a

violent crime against the victim “in the course of, as a

result of, or to facilitate” that interstate travel. 18 U.S.C.

§ 2261(a)(2). This statute lies well within the scope

of Congress’s power to regulate the channels or instrumentalities of, or persons in, interstate commerce. We

further conclude that Larsen’s convictions are not

multiplicitous; the crimes of kidnapping and interstate

domestic violence contain different elements, and each

requires proof of a fact that the other does not. The

district court’s admission of physical evidence obtained

during the warrantless search of Larsen’s home was

ultimately harmless, even if it was error; the evidence

of Larsen’s guilt was overwhelming and uncontroverted.

Finally, Larsen’s life sentence was not unreasonable,

either on its own terms or because the judge’s decision

to impose it was based primarily on Jendusa-Nicolai’s

miscarriage.

I. Background

On January 31, 2004, David Larsen brutally attacked

Teri Jendusa-Nicolai, his ex-wife, when she came to his

home in Racine County, Wisconsin, to pick up their

two young daughters. The couple had divorced three

years earlier after an abusive marriage, and Jendusa-
4 No. 08-3088

Nicolai had recently taken Larsen to court for nonpayment of child support. Larsen lured her into his home

and began to beat her with a baseball bat, strangle, and

smother her. When she did not succumb, he bound her

head, ankles, and wrists with duct tape and placed her

in a garbage can filled with snow. He then put the

garbage can, with Jendusa-Nicolai inside, in the back of

his pick-up truck and drove to a self-storage facility in

Illinois where he had a rented storage locker. He left

her there to die, in a cold storage locker, in the snowfilled garbage can with boxes wedged around it to

prevent her from climbing out.

During the drive to Illinois, Jendusa-Nicolai managed

to free her hands and call 911 from her cell phone. She

gave Larsen’s home address, and local law enforcement

and rescue personnel broke into Larsen’s home around

11 a.m. in an attempt to find Jendusa-Nicolai. They remained inside for about 15 minutes—just long enough

to ascertain that she was not there. Jendusa-Nicolai

was able to make two more calls from her cell phone:

She called her husband at noon and called 911 a second

time around 2 p.m. At one point along the route to

Illinois, she tried to extend her hand outside the garbage can in an effort to attract the attention of passing

motorists. Larsen saw this, hit her again, and confiscated

her cell phone.

From the second and third phone calls, the police

learned that Jendusa-Nicolai was bound and in the back

of Larsen’s truck. They also learned that JendusaNicolai’s two daughters were missing. At about 3:30 p.m.,
No. 08-3088 5

law-enforcement officers and a rescue team reentered

Larsen’s home after the Racine County District Attorney

concluded that exigent circumstances existed for a

warrantless search. The police searched the house thoroughly for six hours looking for the two missing

children as well as clues about Jendusa-Nicolai’s whereabouts. They went through papers, played back voicemail messages, and searched through Larsen’s computer

files. During this search, they observed a large quantity

of blood in the front hall, as well as an overturned chair,

a blood-stained bucket, sweatpants with duct tape

around the ankles, and blood-stained gloves and socks.

In the meantime other officers prepared a searchwarrant application.

Police arrested Larsen around 6 p.m. that evening

when he reported for work. He told investigators that

his daughters were at his girlfriend’s house but claimed

he did not know anything about Jendusa-Nicolai’s disappearance. Police recovered the two girls at about 9:45 p.m.

and suspended the search of Larsen’s home without

any further information about Jendusa-Nicolai’s location.

The search warrant was issued at about 11 p.m.

The next morning, the police searched Larsen’s wallet

and found two business cards for a storage facility in

Illinois. Police called the storage facility, and an employee checked Larsen’s unit and heard moaning inside.

Local police immediately responded and recovered

Jendusa-Nicolai from inside the garbage can. Doctors

later said she was about an hour from death: Her body

temperature had dropped to 84 degrees, renal failure
6 No. 08-3088

had begun, and she was frostbitten about her body. She

was hospitalized and suffered a miscarriage two days

later while still at the hospital; she estimated that she

had been pregnant for about five weeks. All her toes had

to be amputated due to frostbite, and her hearing was

damaged because of the blows to her head.

Larsen was charged in state court with attempted firstdegree intentional homicide and two counts of interference with child custody. See Larsen, 2007 WI App 147, ¶ 1.

A federal grand jury indicted Larsen on two counts:

kidnapping, see 18 U.S.C. § 1201(a)(1), and forcibly

causing a former spouse to travel in interstate commerce while committing a crime of violence in the

course of and to facilitate the travel, see id. § 2261(a)(2),

(b)(2) (the Interstate Domestic Violence Act). Larsen

moved to suppress the evidence recovered in the

warrantless search of his home, but the district court

denied the motion. Larsen pleaded no contest to the

state charges, see Larsen, 2007 WI App 147, ¶ 13, and after

sentencing he returned to federal court and opted for

a bench trial. The case was tried to the court, and at the

close of the evidence, Larsen moved to dismiss on two

constitutional grounds. He argued first that the Interstate Domestic Violence Act exceeded Congress’s legislative power under the Commerce Clause, and second,

that the kidnapping and interstate domestic violence

charges were multiplicitious in violation of the Double

Jeopardy Clause. The district court rejected these arguments and convicted him on both counts.

The sentencing guidelines suggested a sentence of 292

to 365 months, but the judge sentenced Larsen to life
No. 08-3088 7

imprisonment on the kidnapping charge and a concurrent term of ten years (the statutory maximum) on the

interstate domestic-violence charge. In imposing this

above-guidelines sentence, the judge emphasized that

Jendusa-Nicolai’s miscarriage just days after the assault

was a severe aggravating factor that the guidelines had

not taken into consideration.

II. Discussion

A. Commerce Clause Challenge to the Interstate Domestic Violence Act

Larsen first argues that the Interstate Domestic Violence

Act is unconstitutional because it exceeds Congress’s

legislative power under the Commerce Clause. Specifically, he claims that the Act impermissibly regulates

purely local, noneconomic conduct that does not have

a substantial effect on interstate commerce. The relevant portion of the Act provides as follows:

A person who causes a spouse, intimate partner, or

dating partner to travel in interstate or foreign commerce . . . by force, coercion, duress, or fraud, and who,

in the course of, as a result of, or to facilitate such

conduct or travel, commits or attempts to commit a

crime of violence against that spouse, intimate partner,

or dating partner, shall be punished . . . .

18 U.S.C. § 2261(a)(2). We conclude, in line with four

other circuits, that the Interstate Domestic Violence Act

is a proper exercise of Congress’s Commerce Clause

power. See United States v. Lankford, 196 F.3d 563 (5th Cir.
8 No. 08-3088

1999); United States v. Page, 167 F.3d 325 (6th Cir. 1999);

United States v. Gluzman, 953 F. Supp. 84 (S.D.N.Y. 1997),

aff’d, 154 F.3d 49 (2d Cir. 1998); United States v. Bailey,

112 F.3d 758 (4th Cir. 1997).

The Supreme Court’s “modern Commerce Clause

jurisprudence has ‘identified three broad categories

of activity that Congress may regulate under its commerce power.’ ” United States v. Morrison, 529 U.S. 598, 608

(2000) (quoting United States v. Lopez, 514 U.S. 549, 558

(1995)). The Court has held that the Commerce Clause

authorizes Congress to regulate the “use of the channels

of interstate commerce”; the “instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and “those [intrastate] activities that

substantially affect interstate commerce.” Lopez, 514 U.S.

at 558-59; see also Morrison, 529 U.S. at 608-09; Perez v.

United States, 402 U.S. 146, 150 (1971). Congress’s legislative authority in the first and second categories is plenary. Cleveland v. United States, 329 U.S. 14, 19 (1946)

(“The power of Congress over the instrumentalities of

interstate commerce is plenary . . . .”); Caminetti v. United

States, 242 U.S. 470, 491 (1917) (“[T]he authority of Congress to keep the channels of interstate commerce free

from immoral and injurious uses has been frequently

sustained, and is no longer open to question.”). Congressional power in the third category, however, extends

only to economic activity that substantially affects interstate commerce. Morrison, 529 U.S. at 611 (“Lopez’s

review of Commerce Clause case law demonstrates that

in those cases where we have sustained federal regula-
No. 08-3088 9

tion of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in

question has been some sort of economic endeavor.”).

Larsen conceptually locates his argument in the third

Commerce Clause category. The Act is unconstitutional,

he contends, because Congress lacks the authority to

punish domestic violence, which is wholly intrastate

conduct, noneconomic in nature, and does not substantially affect interstate commerce. This argument is misplaced. The Interstate Domestic Violence Act regulates

the channels or instrumentalities of interstate commerce and persons in interstate commerce—not purely

intrastate activity—and therefore falls within Lopez’s

first and second categories, in which Congress has

plenary authority to legislate. The Act punishes only

those who cause a spouse or intimate partner to “travel

in interstate or foreign commerce” and who commit

a crime of violence “in the course of, as a result of, or to

facilitate” that interstate travel. It is the victim’s movement in interstate commerce—not the intrastate crime

of violence—that implicates the Interstate Domestic

Violence Act.

The Supreme Court has long held that movement of

persons across state lines is sufficient to permit congressional regulation under the Commerce Clause. See Camps

Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520

U.S. 564, 573 (1997) (reaffirming that the movement of

persons across state lines is a form of commerce); Heart

of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256

(1964) (holding that the act of crossing state lines need
10 No. 08-3088

not be commercial in character); Caminetti, 242 U.S. at 491.

In Cleveland the Supreme Court upheld the Mann Act

against a challenge by polygamists who transported

their wives across state lines. 329 U.S. 14. The defendants had argued that the Mann Act unconstitutionally regulated marriage, a purely intrastate matter.

The Court rejected this argument: “The power of

Congress over the instrumentalities of interstate commerce is plenary; it may be used to defeat what are

deemed to be immoral practices; and the fact that the

means used may have ‘the quality of police regulations’

is not consequential.” Id. at 19 (quoting Hoke v. United

States, 227 U.S. 308, 323 (1913)). And in Caminetti the

Court upheld the White Slave Act of 1910, which prohibited the transportation of women in interstate commerce for purposes of debauchery or prostitution. 242

U.S. at 491. The Court held:

The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause

of the Constitution, and the authority of Congress to

keep the channels of interstate commerce free from

immoral and injurious uses has been frequently sustained, and is no longer open to question.

Id.

Larsen relies heavily on Morrison, but that pivotal

case hurts rather than helps his argument. Morrison

invalidated, on Commerce Clause grounds, a provision

in the Violence Against Women Act that provided a

civil remedy to victims of gender-related violence. The
No. 08-3088 11

Supreme Court analyzed the provision under Lopez’s

third category—as a regulation of wholly intrastate

activity—“[g]iven [its] focus on gender-motivated

violence wherever it occurs (rather than violence

directed at the instrumentalities of interstate commerce,

interstate markets, or things or persons in interstate

commerce) . . . .” Morrison, 529 U.S. at 609. The Court

noted in particular that the statute lacked any jurisdictional element that would “lend support” to the argument that the provision was sufficiently tied to interstate commerce. Id. at 613.

There is nothing in Morrison that limits Congress’s

authority to regulate the use of the channels or instrumentalities of, or persons in, interstate commerce. See,

e.g., Cleveland, 329 U.S. at 16. To the contrary, the

Court specifically distinguished the civil remedy in the

Violence Against Women Act, which regulated wholly

intrastate conduct, from § 2261(a)(1), the criminalpenalty provision at issue here. The Court took note of

the “interstate travel” element of the criminal offense

and the difference that the presence of this element made

in the Commerce Clause analysis: “The Courts of

Appeals have uniformly upheld th[e] criminal sanction

[§ 2261(a)(1)] as an appropriate exercise of Congress’

Commerce Clause authority, reasoning that ‘[t]he provision properly falls within the first of Lopez’s categories

as it regulates the use of channels of interstate commerce.’ ” Morrison, 529 U.S. at 613 n.5 (quoting Lankford,

196 F.3d at 571-72) (alteration in Morrison).

This language, of course, cannot be taken as an explicit endorsement of the conclusion that § 2261(a)(1) sur-
12 No. 08-3088

vives Commerce Clause challenge as a regulation of the

channels or instrumentalities of, or persons in, interstate

commerce; Morrison addressed only the civil-remedy

provision in the Violence Against Women Act. But

the Court’s language undermines Larsen’s position that

§ 2261(a)(1) regulates purely intrastate activity and

must be analyzed as such under Lopez and Morrison. Accordingly, we join the Second, Fourth, Fifth, and Sixth

Circuits in holding that the Interstate Domestic Violence

Act is a valid exercise of Congress’s power under the

Commerce Clause to regulate the channels or instrumentalities of, or persons in, interstate commerce. See

Lankford, 196 F.3d at 572; Page, 167 F.3d at 335; Gluzman,

953 F. Supp. 84; Bailey, 112 F.3d at 766.

B. Double Jeopardy

Larsen next asserts that his convictions for both kidnapping and interstate domestic violence are multiplicitous in violation of the Double Jeopardy Clause. Kidnapping, he argues, is a lesser-included offense of a violation

of the Interstate Domestic Violence Act, and so to punish

him for both crimes is to punish him twice for the same

offense. See Illinois v. Vitale, 447 U.S. 410, 415 (1980).

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same

offense to be twice put in jeopardy of life or limb.” U.S.

CONST. amend. V; Witte v. United States, 515 U.S. 389, 395-

96 (1995). The double-jeopardy principle implicated here

is that a court may not impose cumulative punishments
No. 08-3088 13

for the same act unless the legislature intends it. See

Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“With respect

to cumulative sentences imposed in a single trial, the

Double Jeopardy Clause . . . prevent[s] the sentencing

court from prescribing greater punishment than the

legislature intended.”); see also United States v. Peel, 595

F.3d 763, 765-66 (7th Cir. 2010). Accordingly, a person

may not be convicted and punished for two separate

offenses arising out of the same act unless “each [offense]

requires proof of a fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). The

familiar Blockburger test focuses on the statutory

elements of the separate offenses.

To obtain a kidnapping conviction, the government

must prove that the defendant (1) seized the victim;

(2) held the victim “for ransom or reward or otherwise”;

and (3) transported the victim in interstate commerce.

18 U.S.C. § 1201(a)-(a)(1); United States v. Sandoval, 347

F.3d 627, 633 (7th Cir. 2003). The Interstate Domestic

Violence Act, on the other hand, requires that (1) the

defendant is a spouse, intimate partner, or dating partner

of the victim; (2) the defendant caused the victim to

travel in interstate commerce by force, coercion, duress,

or fraud; and (3) the defendant committed a crime of

violence against the victim in the course of, as a result of,

or to facilitate the interstate travel. 18 U.S.C. § 2261(a)(2).

Larsen acknowledges that the Interstate Domestic

Violence Act requires proof of facts that the kidnapping

statute does not: The defendant and the victim must be

spouses, intimate partners, or dating partners, and the
14 No. 08-3088

“Whoever unlawfully seizes, confines, inveigles, decoys, 2

kidnaps, abducts, or carries away and holds for ransom

or reward or otherwise any person . . . when the person is

willfully transported in interstate or foreign commerce . . .

shall be punished by imprisonment for any term of years or for

life . . . .” 18 U.S.C. § 1201(a).

defendant must commit a crime of violence against the

victim. He contends, however, that the converse is not

true; he maintains that kidnapping has no element not

also required by the Interstate Domestic Violence Act.

Stated differently, Larsen’s argument is that the crime

of interstate domestic violence encompasses the crime

of kidnapping.

We disagree. The kidnapping statute requires that the

defendant “hold[ ] [the victim] for ransom or reward or

otherwise.” This “holding” requirement is an essential 2

element of kidnapping and must be established in

every case. See 3 WAYNE R. LAFAVE, SUBSTANTIVE

CRIMINAL LAW § 18.2 (2d ed. 2009); Sandoval, 347 F.3d

at 633. Furthermore, the Supreme Court has said

that the “holding” requirement “necessarily implies an

unlawful physical or mental restraint for an appreciable

period.” Chatwin v. United States, 326 U.S. 455, 460 (1946).

The Interstate Domestic Violence Act, on the other

hand, does not require that the defendant hold the victim. Rather, the defendant must cause the victim to

travel in interstate commerce “by force, coercion,

duress, or fraud,” and commit a crime of violence

against the victim “in the course of, as a result of, or to

facilitate” the interstate travel.
No. 08-3088 15

Thus, if a defendant (for example) induces his spouse

to travel across state lines by coercion or false pretenses

and then commits a crime of violence against her when

she arrives, he would be guilty of interstate domestic

violence but not kidnapping because the “holding” element of kidnapping would be missing. Indeed, three

circuits have held that the element of holding distinguishes kidnapping from a violation of the Interstate

Domestic Violence Act for double-jeopardy purposes. See

Lankford, 196 F.3d at 578; United States v. Sickinger,

179 F.3d 1091, 1093 (8th Cir. 1999); Bailey, 112 F.3d at

767. We see no reason to disagree with this conclusion.

Larsen suggests that even if the two crimes require

proof of different elements in theory, in this case the

same facts proved both the interstate travel element of

interstate domestic violence and the “holding” element of

kidnapping. That is, Larsen argues that the government could not prove a violation of the Interstate

Domestic Violence Act in this case without also proving

that the defendant “held” the victim for purposes of the

kidnapping statute. Larsen’s argument essentially reiterates the Supreme Court’s holding in Grady v. Corbin, 495

U.S. 508 (1990), which was overruled as “wrong in principle [and] . . . unstable in application” by United States v.

Dixon, 509 U.S. 688, 709 (1993). In multiplicity challenges

the elements of each offense—not the specific offense

conduct—determine whether two offenses are the same

for purposes of double jeopardy. See Rutledge v. United

States, 517 U.S. 292, 298 (1996) (“The Blockburger test

requires us to consider whether . . . the § 846 conspiracy

offense requires proof of any element that is not a part
16 No. 08-3088

of the CCE offense.” (emphasis added)). We reiterated

this point in United States v. Hatchett:

Dixon informs us that in deciding whether two

offenses are the same or not, our inquiry must focus

on the elements of each of the charged offenses

rather than the underlying conduct. Dixon re-established the “same elements” test articulated by

Blockburger as the one and only test that courts are to

apply in considering whether a defendant may be . . .

punished twice based on a single act or transaction.

245 F.3d 625, 631 (7th Cir. 2001).

Accordingly, it makes no difference that the same

evidence established that Larsen forcibly caused JendusaNicolai to travel in interstate commerce and also that

he “held” her as required for conviction of kidnapping.

Each of these offenses requires proof of an element

that the other does not, and that defeats Larsen’s multiplicity argument. His convictions do not violate double

jeopardy.

C. The Warrantless Search

Larsen argues that the warrantless search of his home

on the afternoon of Jendusa-Nicolai’s disappearance

was unjustified by the emergency doctrine and therefore

violated the Fourth Amendment. During this six-hour

search, the police discovered a large quantity of blood

on the carpet, an overturned chair, and bloody items of

clothing. The district court denied Larsen’s motion to

suppress this evidence, relying on the exigencies of an
No. 08-3088 17

We note, however, the similarities between this case and 3

our decision in United States v. Bell, 500 F.3d 609, 613 (7th Cir.

2007). We also note that the Wisconsin Court of Appeals

has upheld this search as reasonable under the Fourth Amendment because the exigent circumstances “did not dissipate

until Jendusa-Nicolai and her two children were located.”

Larsen, 2007 WI App 147, ¶ 30.

ongoing missing-persons investigation. See, e.g., United

States v. Bell, 500 F.3d 609, 613 (7th Cir. 2007). Larsen

maintains that the emergency (or “exigent circumstances”) doctrine does not apply because the police knew

before they reentered the home that neither JendusaNicolai nor her children were there and they had

plenty of time to get a warrant between the first search

at 11:30 a.m. and the second at 3:30 p.m.

We need not decide the merits of the Fourth Amendment question because any error in admitting the evidence was harmless. See United States v. Pavelski, 789

3

F.2d 485, 490 (7th Cir. 1986) (the admission of tainted

evidence is harmless if it is clear beyond a reasonable

doubt that the verdict would stand without it). The case

against Larsen was ironclad. The government presented

Jendusa-Nicolai’s graphic testimony about how Larsen

attacked and kidnapped her; played the tape from the

two 911 calls from Jendusa-Nicolai in which she

gave Larsen’s address and told police she was bound

in the back of his truck; and introduced the physical

evidence from Larsen’s storage locker where JendusaNicolai was found. Indeed, Larsen’s written closing

argument admitted the facts that had been adduced
18 No. 08-3088

during the bench trial and instead pressed the two constitutional arguments he has reiterated here. Under

these circumstances, the evidence of the blood-stained

carpet and clothing was entirely cumulative. The evidence of Larsen’s guilt was abundant and conceded,

and Larsen’s theory of the case was essentially confined

to the Commerce Clause and multiplicity challenges.

Any error in admitting the physical evidence obtained

in the warrantless search of Larsen’s home was harmless.

D. Larsen’s Life Sentence

Finally, Larsen contends that his sentence is both procedurally and substantively unreasonable. The district

judge sentenced Larsen to life imprisonment on the

kidnapping charge—two levels higher than the top of

his suggested guidelines range—in large part because

Jendusa-Nicolai suffered a miscarriage three days after

Larsen assaulted and abducted her. Larsen argues first

that the evidence was insufficient for the judge to find

either that Jendusa-Nicolai was pregnant or that Larsen’s

conduct caused the miscarriage. He also maintains that

the life sentence is substantively unreasonable.

We review sentences for procedural error to ensure

that the sentencing judge did not “select[] a sentence

based on clearly erroneous facts.” United States v. Jackson,

547 F.3d 786, 792 (7th Cir. 2008). Here, Larsen waived

any factual challenge to the evidence that JendusaNicolai suffered a miscarriage. At sentencing Larsen’s

counsel explicitly acknowledged that a complete understanding of the consequences of Larsen’s crimes
No. 08-3088 19

included Jendusa-Nicolai’s miscarriage: “It’s about a

physical, brutal assault, and an effort to kill someone. It’s

about the death of a five week old fetus. Not there in

the storage locker . . . but days later in the hospital,

as the presentence report correctly reports. A miscarriage

on Wednesday, following the assault on Saturday.” (Emphasis added.) Aside from the waiver, however,

both Jendusa-Nicolai and her husband testified to the

pregnancy and her miscarriage, and the district judge

was entitled to credit their testimony. Finally, it

was not clearly erroneous for the judge to conclude that

the miscarriage was attributable to Larsen’s conduct. It

was reasonable for the judge to infer that the severe

beating and hours of exposure to the cold caused JendusaNicolai to miscarry—particularly in light of the fact that

her doctors estimated that Jendusa-Nicolai was just an

hour from death when rescuers found her in Larsen’s

self-storage locker.

We also conclude that the above-guidelines sentence

of life in prison was not an abuse of discretion. The sentence is substantively reasonable given the cold-blooded

brutality of Larsen’s crimes and the extreme pain and

anguish he inflicted—on Jendusa-Nicolai primarily, and

on her family as secondary victims. It was entirely fair

for the judge to consider the miscarriage as a significant aggravator. The judge took note of the mitigating

factors the defense presented at sentencing: Larsen had

no prior criminal history, a steady job, and was active in

his church. That the judge gave this mitigation little

weight is hardly surprising in light of the obvious
20 No. 08-3088

severity of these crimes and in any event is not for us to

second-guess.

AFFIRMED.

8-4-10